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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Imran Ahmad Jamali, a single man,
Plaintiff,
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No. CV-13-00613-PHX-DGC
ORDER
v.
Maricopa County, et al.,
Defendants.
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Before the Court are the motion to dismiss filed by Defendant Kyle Ritter
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(Doc. 99), the motion to dismiss filed by Defendant Sahar Sarid (Doc. 100), the motion to
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join Kyle Ritter’s motion to dismiss filed by Defendant Sahar Sarid (Doc. 101), the
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motion to dismiss filed by Defendant Maricopa County (“the County”) (Doc. 102), the
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motion to join Defendant Kyle Ritter and the County’s motions to dismiss filed by
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Defendants James Richmond and Richmond Consulting Group, LLC (Doc. 103), the
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motion to join the County’s motion to dismiss filed by Defendant Sahar Sarid (Doc. 104),
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the motion to join in the County’s motion to dismiss filed by Defendant Kyle Ritter
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(Doc. 105), the motion to dismiss filed by Defendant Stafford Shealy (Doc. 106), the
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motion to join Defendant Sahar Sarid’s motion to dismiss filed by Stafford Shealy
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(Doc. 107), the motion to join Defendant Kyle Ritter’s motion to dismiss filed by
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Defendant Stafford Shealy (Doc. 108), the motion for default against Defendants Cornetti
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and Wiggan filed by Plaintiff Imran Ahmad Jamali (Doc. 113), the motion to set aside
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entry of default filed by Defendant Spotlight Media Group, LLC (Doc. 120), and the
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motion to dismiss and join in pending motions to dismiss filed by Defendant Spotlight
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Media Group, LLC (Doc. 121). For the reasons set forth below, the Court will dismiss
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the complaint for lack of subject matter jurisdiction.1
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I.
Background Facts.
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In his First Amended Complaint (Doc. 89 at 11), Plaintiff Imran Ahmad Jamali
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alleges that the FBI sought to prevent him from working as an airline pilot as part of an
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investigation. He claims the FBI directed the TSA and FAA to declare Plaintiff a
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terrorist. Later, when the FBI’s investigation against Plaintiff had faltered, he alleges the
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FBI conspired with Maricopa County to frame him. Plaintiff alleges that framing him
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would accomplish the FBI’s wrongful ends because he could not return to work for the
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airline that employed him once he was criminally charged. Plaintiff claims he was
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arrested as part of an FBI ruse on October 4, 2010, for supposedly stalking the friends
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and family of a U.S. State Department spy named Amy Hyatt. Plaintiff claims that he
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never knew any of the people he was falsely accused of stalking. After being criminally
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charged for stalking, the FBI abandoned its terrorism accusations against Plaintiff.
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According to Plaintiff, he lost his job because of being wrongfully charged.
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Plaintiff alleges that Maricopa County employees “coerced, threatened and
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forcefully took the Plaintiff’s personal property” – specifically, his image, name, and
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fingerprints – without his consent during his arrests. Doc. 89 ¶ 69. He claims Maricopa
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County posted his image, name, arrest information, and other personal details on their
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website: mcso.org/mugshot. Then, to Plaintiff’s chagrin, a host of other parties – many
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of whom are named as defendants in this action – appropriated Plaintiff’s image and used
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it on their own private sites maintained to display mug shots. Many of these websites,
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including the County’s, permitted site browsers to vote on a “mugshot of the day,” and
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some even permitted viewers to make comments about images posted on the sites. Some
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of the comments were abusive and derogatory in nature.
Other parties named as
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defendants used Plaintiff’s image in printed publications.
The crux of Plaintiff’s
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The requests for oral argument are denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
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complaint is that he enjoys a property interest in his image and other identifying
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information under the Constitution and a UCC1 filing with the International Association
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of Commercial Administrators, and that this property interest was violated by the County
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and other Defendants who appropriated his property from the County’s website.
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Plaintiff initially filed a complaint on March 26, 2013, which the Court dismissed
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for lack of subject-matter jurisdiction. Doc. 47. Plaintiff now seeks relief in his amended
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complaint (Doc. 89) under a multitude of legal theories, including claims that arise under
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state law and the Constitution: (1) trespass to chattel; (2) conversion; (3) unjust
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enrichment; (4) civil conspiracy; (5) the Fourth Amendment right to be free from
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unreasonable seizures; (6) the Fifth Amendment right to private property; (7) the Eighth
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Amendment right to be free from cruel and unusual punishment; (8) an alleged Ninth
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Amendment right to privacy and publicity; (9) an alleged Ninth Amendment right to life,
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liberty and happiness; (10) intentional infliction of emotional distress; (11) gross
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negligence; and (12) defamation.
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punitive damages. He also seeks both temporary and permanent injunctions against
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Defendants’ use of images, names, and other personal information taken pursuant to his
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arrest.
Plaintiff seeks compensatory, consequential, and
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The County moves to dismiss the complaint for lack of subject matter jurisdiction.
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Doc. 102. It argues that Plaintiff’s complaint should be dismissed for three reasons:
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(1) Plaintiff has no basis in law to maintain any claims under the Fourth, Fifth, Eighth, or
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Ninth Amendments; (2) Plaintiff’s state law claims are based on the same faulty
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understanding of the Constitution; and (3) Plaintiff has failed to comply with the notice of
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claim statute and statute of limitations. Doc. 102 at 1-2.
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II.
Dismissal of Federal Claims.
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Even if Plaintiff is correct that the County’s seizure of his image and personal
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information implicate the Fourth Amendment, “[t]o say that the Fourth Amendment
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applies here is the beginning point, not the end of the analysis.” Maryland v. King, 133
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S. Ct. 1958, 1969 (2013). “As the text of the Fourth Amendment indicates, the ultimate
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measure of the constitutionality of a governmental search [or seizure] is
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‘reasonableness.’” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). In
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some circumstances, such as “[w]hen faced with special law enforcement needs,
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diminished expectations of privacy, minimal intrusions, or the like, the Court has found
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that certain general, or individual, circumstances may render a warrantless search or
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seizure reasonable.”
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circumstances diminish the need for a warrant . . . because an individual is already on
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notice . . . that some reasonable police intrusion on his privacy is to be expected.” King,
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133 S. Ct. at 1969.
Illinois v. McArthur, 531 U.S. 325, 330 (2001).
“Those
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The County’s seizure and publication of Plaintiff’s image and personal
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information did not violate his Fourth Amendment rights. In King, the Supreme Court
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held that taking a DNA sample of an arrestee did not violate his constitutional rights. 133
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S. Ct. at 1980. The Court explained that taking pictures, fingerprints, and physical
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measurements, recording the location of scars and body markings, and obtaining other
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relevant identifying information from an arrestee is reasonable under the Fourth
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Amendment for “the safe-keeping of a prisoner, and to prevent his escape, or to enable
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[law enforcement] the more readily to retake the prisoner if he should escape.” Id. at
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1975 (quoting State ex rel. Bruns v. Clausmier, 57 N.E. 541, 542 (Ind. 1900)). Plaintiff’s
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Fourth Amendment rights were not violated by similar actions in this case.
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Nor did the County violate Plaintiff’s Fifth Amendment rights. Plaintiff does not
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have a property interest in his likeness and personal information that would prevent the
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County from taking his picture and obtaining personal information incident to his arrest.
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Use of information seized incident to arrest should “not be unduly restricted upon any
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fanciful theory of constitutional privilege.” King, 133 S. Ct. at 1975 (citing Shaffer v.
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United States, 24 App.D.C. 417, 426 (1904)).
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The County did not violate Plaintiff’s Eighth Amendment rights. Plaintiff asserts
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that he was subjected to cruel and unusual punishment when his image was placed on the
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Maricopa County Sheriff’s Office website. Plaintiff does not assert, however, that he was
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subjected to any physical or psychological force by Maricopa County agents. Although
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some may regard Maricopa County’s practice of holding a “mugshot of the day” contest
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to be tasteless and inappropriate, it is not cruel and unusual punishment under the Eighth
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Amendment. The Eighth Amendment requires that pretrial detainees and other prisoners
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be afforded “the minimal civilized measure of life’s necessities.” Farmer v. Brennan,
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511 U.S. 825, 832 (1994). Plaintiff cites no authority to suggest that protection of one’s
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arrest photo constitutes such a minimal requirement. Indeed, the Supreme Court has held
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that information relating to a person’s arrest may be publicized without violating his
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constitutional rights. Paul v. Davis, 424 U.S. 693, 713 (1976).
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Plaintiff’s Ninth Amendment claim also lacks merit. The Ninth Amendment has
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not traditionally been considered a source of substantive rights. United Public Workers
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of America (C.I.O.) v. Mitchell, 330 U.S. 75, 96 (1947); see Laurence H. Tribe, American
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Constitutional Law, 776 n. 14 (2d ed. 1998) (“It is a common error, but an error
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nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of
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rights as such; it is simply a rule about how to read the Constitution.”). Plaintiff cites no
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authority in support of his Ninth Amendment claim.
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In his response to the motions, Plaintiff asserts for the first time that his federal
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claims are not based on a conventional understanding of the Fourth, Fifth, Eighth, and
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Ninth Amendments. Doc. 166 at 7. Plaintiff argues instead that Defendants violated his
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constitutional rights by engaging in interstate commerce with his personal property and
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by putting that personal property to commercial use on their respective websites. Id.
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Plaintiff seems to be claiming that Defendants have committed some sort of commercial
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constitutional tort, but Plaintiff cites no authority for his assertion that the Bill of Rights
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or any other constitutional provision prevents Defendants from using his image and other
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personal information for commercial purposes.
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Circuit precedents hold that Defendants did not violate any of Plaintiff’s constitutional
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rights when they took and published his image and personal information incident to his
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arrest, the Court finds no basis for Plaintiff’s assertion that Defendants violated his
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Because Supreme Court and Ninth
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constitutional rights by putting public information about his arrest to commercial use.
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In summary, the actions of Defendants have not violated the United States
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Constitution. The Court will apply this clear holding to all of Plaintiff’s federal claims
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and all Defendants.
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III.
Dismissal of State Claims.
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With Plaintiff’s federal claims dismissed, the Court declines to exercise
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supplemental jurisdiction over Plaintiff’s remaining state law claims. The relevant statute
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provides that “[t]he district courts may decline to exercise supplemental jurisdiction over
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a claim under subsection (a) if . . . the district court has dismissed all claims over which it
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has original jurisdiction.” 28 U.S.C. § 1367(c); see also Acri v. Varian Assocs., Inc., 114
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F.3d 999, 1000 (9th Cir. 1997) (en banc) (district court has discretion to keep, or decline
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to keep, state law claims under conditions set forth in § 1367(c)). The Court will dismiss
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Plaintiff’s state-law claims.
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IV.
Leave to Amend.
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“The court should freely give leave [to amend a pleading] when justice so
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requires.” Fed. R. Civ. P. 15(a)(2); see 28 U.S.C. § 1653 (authorizing amendment of
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pleadings to cure defective jurisdictional statement). In the Ninth Circuit, “[a] pro se
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litigant must be given leave to amend his or her complaint unless it is ‘absolutely clear
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that the deficiencies of the complaint could not be cured by amendment.” Karim-Panahi
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v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (quoting Noll v. Carlson, 809
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F.2d 1446, 1448 (9th Cir. 1987)); see also Waters v. Young, 100 F.3d 1437, 1441 (9th
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Cir. 1996) (“As a general matter, this court has long sought to ensure that pro se litigants
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do not unwittingly fall victim to procedural requirements that they may, with some
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assistance from the court, be able to satisfy.”).
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The Court will dismiss the complaint without leave to amend. The gravamen of
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Plaintiff’s complaint – that Defendants wrongfully appropriate his image and personal
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identifying information – simply does not give rise to a federal constitutional violation or
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any other federal claim. Plaintiff has effectively had three opportunities to identify a
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federal claim: in his original complaint, in his amended complaint, and in his response to
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the motions to dismiss, where he sought to craft a federal commercial claim of some
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kind. The Court is satisfied that Plaintiff cannot plead a federal claim and that further
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amendments would be futile. The Court accordingly will not grant him leave to amend.
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IT IS ORDERED:
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subject matter jurisdiction. Leave to amend is denied.
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Plaintiff’s first amended complaint (Doc. 89) is dismissed for lack of
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As Plaintiff has voluntarily dismissed his complaint as to Defendant
Spotlight Media Group, LLC (Doc. 127), its motion to set aside default
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(Doc. 120) is denied as moot.
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3.
Plaintiff’s motion to enter default (Doc. 113) is denied.
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4.
The Court grants the motions to join (Docs. 101, 103, 104, 105, 107, 108,
121).
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The Clerk of Court shall terminate this action.
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Dated this 18th day of October, 2013.
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